Articles Posted in Uncategorized

Patent protection for Bitcoin and other blockchain based crypto currencies is a growing issue, as discussed in the February 1, 2016 article by American Banker Magazine, “Crypto Colonizing: Bank of America’s Blockchain-Patent Strategy.”

On being asked my opinion concerning Bank of America’s blockchain patent push, I responded, “”The scope [of the patent application] would have to be limited to the specific new feature that they add,” said Paul Overhauser, managing partner at Overhauser Law Offices, a firm that specializes in intellectual property cases. “They could not get patent protection so broad as to give them any patent rights to the original source code idea of having a blockchain.”

To read the full article, click here.

Hammond, Indiana – Plaintiff Stanley Pagorek of Dyer, Indiana filed an intellectual property lawsuit in the Northern District of Indiana alleging that Vizio, Inc. of Irvine, California and Cognitive Media Networks, Inc. of San Francisco, California monitor, track and report viewing habits and information about devices attached to home networks for profit. Pagorek seeks class-action status for this Indiana litigation.

Defendant Vizio produces and sells internet-capable televisions. It also offers audio and entertainment products, including sound bars, tablets, DVD players and Blu-ray players. Vizio has a controlling stake in Defendant Cognitive, an advertising company.

Defendants are accused of surreptitiously including tracking software on more than 10 million Vizio high-definition, internet-connected televisions (sometimes known as “smart TVs”). The functionality of the software includes Cognitive’s content-recognition capabilities.

According to the lawsuit, filed by intellectual property lawyers for Pagorek and the putative class, the tracking software is activated by default, most customers would not be made aware of it in the process of setting up their TVs and, for those who were, disabling the software is less than intuitive. The software enables Vizio to monitor and identify the viewing habits of those smart TV customers. The complaint also indicates that the analysis done by the tracking software enables Vizio to infer with reasonable certainty which person is watching what programming.

That information is then provided to third-party advertisers and content providers. Those third parties are then able to customize the advertising and other content displayed to the smart TV customers not only on the Vizio smart TV, but also on any other “smart” device, such as smartphones, tablet computers, laptop computers and desktop computers, that is connected to the same internet protocol address as the Vizio smart TV.

In this complaint, the following is alleged:

• Count One: Violations of the Video Privacy Protection Act (18 U.S.C. § 2710)
• Count Two: Violation of the Prohibition of Disclosure by Persons Providing Video Recording Sales or Rentals Without Written Consent (Cal. Civ. Code § 1799.3)
• Count Three: Violation of California’s Unfair Competition Law (Cal. Civ. Code § 17200, et seq.)
• Count Four: Violation of California’s Consumer Legal Remedies Act (Cal. Civ. Code §§ 1750, et seq.)
• Count Five: Indiana Deceptive Consumer Sales Act (Ind. Code §§ 24-5-0.5, et seq.)
• Count Six: Unjust Enrichment
• Count Seven: Fraud by Omission
• Count Eight: Breach of the Implied Warranty of Merchantability

• Count Nine: Violation of the Electronic Communications Privacy Act (18 U.S.C. § 2511)

Plaintiff Pagorek, on behalf of himself and the other members of the proposed class, requests damages, injunctive relief, interest, attorneys’ fees and costs.

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Santa Clara, California – EFF to participate in today’s U.S. House Judiciary Committee discussion on copyright law in the digital age.

Today at 2 p.m., Electronic Frontier Foundation (“EFF”) Staff Attorney Kit Walsh will participate in a roundtable discussion about U.S. copyright laws convened by the House Judiciary Committee, which is undertaking the first comprehensive review of the nation’s copyright laws since the 1960s.

EFF argues that copyright was intended to promote creativity, but the law has not developed to support the explosion of creativity enabled by new technologies. Too often, it says, copyright is instead being abused to shut down innovation, creative expression, and even everyday activities like tinkering with your car.

Indianapolis, Indiana – The Southern District of Indiana held that copyright Defendant Rural Media Group Inc. of Gretna, Nebraska was subject to neither general nor specific personal jurisdiction and dismissed the copyright infringement lawsuit against it.

Plaintiff Larry Philpot of Indianapolis, Indiana is a professional photographer. He photographed Willie Nelson during a music concert in St. Louis, Missouri. Plaintiff Philpot later registered the photograph with the United States Copyright Office. He also licensed the photograph to be used by others under the terms of the Creative Commons Attribution 2.0 Generic License.

This lawsuit, filed by Philpot acting as his own copyright attorney, was brought when he learned that Defendant had allegedly published the copyrighted photograph on its website, www.myruraltv.com. In the lawsuit, Philpot contended that Defendant had infringed Plaintiff’s copyright by the unlicensed publication of the Nelson photograph. Philpot argued that the court could exercise both general and personal jurisdiction over Defendant.

In contrast, Defendant asked the Southern District of Indiana to dismiss the lawsuit for lack of personal jurisdiction, asserting via a declaration of one of its corporate officers that it “does not own, lease, occupy, or use any real or personal property in Indiana[,] . . . maintain an office in Indiana, maintain a registered agent in Indiana, maintain a bank account in Indiana, or pay taxes in Indiana” and that its “website and Facebook page do not specifically target the Indiana market, but rather target a mass national audience.”

District Judge William T. Lawrence granted the motion to dismiss. On the issue of general jurisdiction, the court noted that “Defendant is a Delaware corporation with its principal place of business located in Gretna, Nebraska. Its only other office is located in Nashville, Tennessee.” The court stated that “general jurisdiction exists only when the [party’s] affiliations with the State in which suit is brought are so constant and pervasive as to render it essentially at home in the forum State”; it added that the prior standard of “substantial, continuous, and systematic course of business” was insufficient. Under the controlling jurisprudence, handed down by the U.S. Supreme Court in the 2014 case Daimler AG v. Bauman, such constant and pervasive contacts are, except in rare cases, present under only two circumstances: when the proposed forum state is the corporation’s principal place of business or its state incorporation. As neither of these conditions was met, and as this was not an exceptional case which might warrant a deviation from the standard rule, general jurisdiction was held to be improper.

The court held that an exercise of specific jurisdiction, a less stringent standard than general jurisdiction, would also be improper. While specific jurisdiction can be found where a defendant is accused of expressly aiming an intentional tort at the forum state, neither “express aiming” nor an intentional tort were in evidence.

The court denied several related motions by Plaintiff and granted Defendant’s motion to dismiss.

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New Albany, Indiana – A copyright attorney for Broadcast Music, Inc. (“BMI”) of New York, New York filed a complaint for copyright infringement in the Southern District of Indiana, New Albany Division against Philkerr, LLC d/b/a Hardy’s Café and Steven Phillips, individually, both of Scottsburg, Indiana.

BMI asserts that it has been granted the right to license the public performance rights of approximately 8.5 million copyrighted musical compositions. In this Indiana copyright litigation, BMI alleges 15 counts of copyright infringement. In addition to Plaintiff BMI, this lawsuit was instituted on behalf of twenty-five other Plaintiffs. These Plaintiffs claim ownership to the copyrighted compositions at issue.

The Defendants in this lawsuit are Philkerr LLC and Steven Phillips, the owner of Philkerr. They are accused of having infringed the copyrights-in-suit by causing the unauthorized public performance of BMI members’ musical works at Hardy’s Café.

Through this lawsuit filed by their copyright lawyer, Plaintiffs ask for an injunction restraining Defendants from publicly performing Plaintiffs’ compositions without authorization from BMI and a judgment for statutory damages, attorney’s fees and the costs of the litigation.

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Chicago, Illinois – Richard Bell, an Indiana copyright attorney and professional photographer appealed a ruling by the United States District for the Southern District of Indiana, Indianapolis Division to the United States Court of Appeals for the Seventh Circuit. The Seventh Circuit dismissed the appeal for lack of jurisdiction.

In this copyright lawsuit, Bell, a repeat Plaintiff in the federal courts of Indiana, alleged copyright infringement by multiple Defendants in a lawsuit that he filed on his own behalf in the Southern District of Indiana. He asserted that each Defendant had impermissibly displayed a photo that he owns on websites promoting their respective businesses. His copyright infringement complaint sought both damages and an injunction prohibiting future use of the photo.

Defendants moved for summary judgment on the issue of damages. The district court found that Bell could not demonstrate how Defendants had caused him financial harm and, thus, Bell was entitled to no monetary recovery. After that ruling, the trial court issued a judgment against Bell, which Bell appealed to the Seventh Circuit.

The Seventh Circuit declined to hear the matter on the grounds that it lacked jurisdiction, noting that the district court had ruled on the issue of damages but not on the issue of injunctive relief. The appellate court would not have jurisdiction under 28 U.S.C. § 1291 until a “final decision” had been reached. In turn, such a “final decision” required that the litigation had been concluded on its merits.

Practice Tip: Bell’s approach here is curious. First, he appealed the district court’s ruling. Then, he apparently argued to the Seventh Circuit that his own appeal was premature because the district court’s judgment had not been final. As the appellate court noted, “Bell is correct: the court did not resolve his claims for injunctive relief. As such, the district court’s ruling was not final, and Bell’s appeal is premature.”

Practice Tip: Richard Bell has sued hundreds of defendants for copyright infringement in the Indiana federal courts. Previous blog posts regarding his litigation include:

• Bell Rings in the Holiday Weekend with a New Copyright Lawsuit
• Bell Files New Copyright Infringement Lawsuit
• Bell Sues Georgia-Base FindTicketsFast.com for Copyright Infringement
• Richard Bell Files Two New Copyright Infringement Lawsuits
• Court Prevents Copyright Plaintiff Bell from Outmaneuvering Legal System; Orders Bell to Pay Almost $34,000 in Fees and Costs
• Three Default Judgments of $2,500 Ordered for Copyright Infringement
• Court Orders Severance of Misjoined Copyright Infringement Complaint

• Richard Bell Files Another Copyright Infringement Lawsuit

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Asked about the recent rise in lawsuits concerning PayTV events in bars and restaurants, I was quoted as follows:

“In my experience they tend to be owners of really small establishments,” Paul B. Overhauser, an attorney in Indianapolis who has represented hundreds of restaurants in piracy cases, said in an interview. “If there is a default judgment, it’s probably because the bar owner couldn’t afford an attorney.”

Overhauser said the sports promoters use the amount of those default judgments in pressuring other owners to settle. “They’ll say, ‘You better settle with us right away for $10,000 because this other one paid $150,000,'” he said. “If you’re a business owner and you get a letter like that, it’s pretty compelling if you don’t have a lawyer.”

Indianapolis, IN – Trademark attorneys for Australian Gold, LLC of Indianapolis, Indiana filed a lawsuit in the Southern District of Indiana against Ruelala Incorporated of Boston, Massachusetts seeking a declaration of non-infringement of the trademark RUE LA LA. Ruelala has registered trademark no. 3,484,375 and 3,484,376 while Australian Gold has a pending trademark Application No. 85/227,366 with the US Trademark Office.

Australian Gold alleges that it received a cease-and-desist letter from Ruelala, demanding that Australian immediately cease using the Rue La La mark. The complaint states that Australian sells a “tanning preparation product” for use in indoor tanning facilities under the name RUE LA LA. It is alleged that Ruelala operates a “private sale event website” that offers limited time sales on various consumer products, rather it is alleged that the products sold are “high-end third-party products.” Australian Gold states that none of the products sold by Ruelala are named RUE LA LA. Australian claims that no customers are confused by the co-existence of Australian Gold’s product and Ruelala’s service. Australian now seeks a declaratory judgment of non-infringement and no unfair competition based upon Ruelala’s threats of litigation.

Practice Tip: It appears from the complaint that Australian and Ruelala’s uses of the mark are in entirely unrelated lines of business. Ruelala will have to show that the products offered are sufficiently similar to create a likelihood of confusion. It is also interesting that Australian Gold alleges it has used the mark since November 2011. The complaint states that Ruelala applied for its trademarks in September 2010.
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Indianapolis and Hammond, Indiana — Indiana’s federal district courts have recently amended their local rules. Some of the recent changes have implications for Indiana intellectual property attorneys filing patent, trademark, and copyright lawsuits.

Effective January 1, 2011, the Southern District Court of Indiana amended its discovery rules to “encourage informal resolution of discovery disputes, including disputes that might otherwise derail a deposition.” Specifically, Local Rule 37.1 is amended to require that if attorneys’ good faith efforts to resolve a discovery dispute are unsuccessful, attorneys “are encouraged” to contact the Magistrate’s office for assistance in resolving the dispute by telephone or other informal methods. If this conference does not resolve the dispute, the amended rule allows counsel to file motions raising the dispute. The motion must recite the efforts to resolve the dispute in the motion, rather than the prior rule’s requirement of a separate statement discussing these efforts. Effective January 1, 2011, Local Rule 37.3, “Mode of Raising Discovery Dispute with the Court,” is deleted.

The Southern District Court of Indiana also amended Local Rule 83.7 to require that an attorney’s motion to withdraw include the client’s contact information. Local Rule 23.1, regarding class action lawsuits, was deleted to eliminate the 90-day waiting deadline for certification of a class.

Fort Wayne, Indiana – Trademark attorneys for J.B. Custom, Inc. of Huntertown, IN, have filed suit against, among others, Amadeo Rossi S.A. of Brazil and Taurus International Manufacturing of Miami, FL, alleging that the defendants have unlawfully made, advertised, imported, and/or sold firearms using trade names and designs owned by the plaintiff.

The plaintiff is a custom firearm manufacturer who previously contracted with the defendant Rossi for the manufacture and distribution of firearms designed by plaintiff, with the plaintiff to have exclusive distribution rights in the United States. The complaint alleges that Rossi has advertised in an American magazine a firearm of the plaintiff’s design which breaches the contract, infringes plaintiff’s trademark rights in the design, and infringes plaintiff’s Trademark Registration No. 3,654,700 for the word mark MARE’S LEG, as registered by the U.S. Trademark Officein connection with the custom manufacturing of firearms and accessories.

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